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trials for murder in cases of homicide, the criminal intent, the specific state of mind forbidden by law, l'intention incriminé par loi, is termed malice. And this it is that is in the first instance presumed to have actuated a man who is shown to have deprived another of life.

It is unnecessary to go into a minute analysis of the word malice. Undoubtedly the word meant originally what it does mean etymologically, that is, spite, or malevolence to an individual ; and this was probably its original sense in indictments for murder, as has been pointed out by a discriminating writer. But it was found that there were many cases of killing in which the motive was as bad as in that where the slayer had personal spite towards his victim, for example, where a man killed a stranger for money. Hence its meaning had to be extended. Now when a new instance arose, the jury would say they found such and such facts, but were unable to say whether the legal sense of malice covered such an instance, that is, whether it was murder or not. Thus the task of enlarging the original sense of malice to cover new and heinous cases devolved upon the court; and this seems to have been the origin of the doctrine of malice implied by law, as it is found in the books, 2 as distinguished from express malice. After a long period of such judicial legislation, Sir Michael Foster was able to define implied malice to be where “ the fact hath been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent on mischief.”3 In a legal sense, therefore, malice has come to be defined to mean “a wrongful act, done intentionally, without just cause or excuse.” 4 In the case of murder it has been thought to have a more intense sense; “yet,” says Mr. Justice Story, “in strictness of law, the term malice, by itself, perhaps, has no more than its usual sense in law even in such cases." 5 It is necessary, therefore, to bear in mind that le moi de l'agent, et jamais dans l'acte matériel ; qu’ainsi il est absurde de parler du dol réel ou objectif. Mais la distinction n'est pas moins conforme à la nature des choses. C'est la distinction entre la culpabilité résultant primâ facie de l'acte matériel, et celle qui doit être ultérieurement prouvée par d'autres circonstances, par d'autres faits.” Rossi, Traité de Code Pénal, liv. ii. c. 24.

i Steph. Cr. Law, 82. ? 3 Co. Inst. 47; Rex v. Hazel, 1 Leach, Cr. Ca. 406, 425, per Lord Mansfield. 3 Foster, Cr. Law, 255, 257. 4 Bromage v. Prosser, 4 B. & Cr. 255. SU. S. v. Taylor, 2 Sumner, 586. “The corrupt disregard of the person and life

the presumption of malice from the fact of killing, and the doctrine of implied malice at common law, have no essential connection with each other. The latter is an ultimate conclusion drawn by the court upon all the circumstances, and evidence of the case, as to the character of the act, and had its origin in the inadequacy of the word malice in its primitive sense to cover all the cases which from time to time the court thought heinous enough to be punished as murder. The former is an inconclusive presumption, resulting not from the entire evidence in the case, but from the attitude which the law is bound to maintain primâ facie towards a man who has caused the death of another, and has not explained the act.

Again, it is said that the rule under consideration is irreconcilable with other principles of evidence in the criminal law, that are universally acknowledged as fundamental. Thus it is a wellknown rule that the prisoner is always presumed to be innocent until he is proved to be guilty. Then, as guilt consists of the overt act and the criminal intent, to presume the existence of either of these elements, even primâ facie, is an infringement of the general presumption in favor of innocence. But the presumption of innocence is a general presumption applicable to the question of the corpus delicti, as well as to the intent. That is, before any thing is known, before the commission of the corpus delicti, or its commission by the defendant, is established, this general presumption stands. The well-known instance of the violation of this principle by positive law is that of the statute 21 Jac. I. c. 27, which enacted that if any woman be delivered of a child, which if born alive should by law be a bastard, and endeavored to conceal its death, she should be deemed guilty of

of another is precisely the dole, or malice, the depraved and wicked purpose which the law requires and is content with.” 2 Hume, Cr. Law of Scot. 254-256.

1 As the definition of malice became gradually fixed, the distinction between malice implied and malice express became more vague, and the two were often confounded in the books. Webster's Case, No. Am. Rev. vol. Ixxii. p. 178; per Selden, J., in Darry v. People, 2 Park. Cr. Ca. 606, 638. Of course, strictly, all malice is implied, that is, the intent can only be gathered from circumstances. Steph. Cr. Law, 268. “Dolus, in mente residens, non nisi ex ipsius facti qualitatibus colligi, atque ita ex præsumptione doceri possit.” Voet, ad Pandect, lib. xxii. art. 3, no. 18. The division of dolus into dolus verus and dolus præsumptus was equally vague. “Est dolus verus qui manifestis indiciis probatur; præsumptus vero qui indiciis non multum claris et manifestis detegitur . . . nulla sit lex, quæ differentiam hanc constituit.” Menoch. de Præs. lib. v. præs. 3, no. 6.

murder, unless she could prove by at least one witness that the child was born dead. This has been justly called an atrocious law, and even Mr. Justice Blackstone acknowledges that it "savored pretty strongly of severity.” But it will be seen that it is one thing to call upon a person who is proved to have killed another, to show that it was not done unlawfully, and quite a different thing to assume that a person did the killing, and also that he did it in a manner to make the act murder. Guilt and crime are never to be presumed; but it is not law that the defendant may maintain, as it were, a sullen and defiant attitude when the law has proved the commission of an act by him, that requires explanation to show that it was not lawless. “No man,” says Lord Tenterden, " is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction ;” but he adds, “ when such proof has been given ... and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends ? "2. Indeed, it is a universal rule, that when the commission of an act prima facie unlawful is fixed upon the defendant, the presumption that the act was done with a criminal intent displaces for the time the general presumption of innocence. Special presumptions take precedence of general ones.3

But not only is it a general rule of law that innocence is to be presumed, and consequently the burden of proving guilt is upon the prosecution, but such guilt must be proved beyond a reasonable doubt. Now, without going into the question of what is meant by this phrase, which is said to have made its appearance in the books in its existing form within the present century,4 it is sufficient to say that in general a reasonable

14 BI. Com. 198. A similar enactment existed in France by edict of Hen. II. in 1656. Bonnier, Traité des Preuves, tom. ii. no. 855.

2 Rer y. Burdett, 4 B. & Ald. 96.

& Huberus, Præl. Jur. Civ. lib. xxii. tit. 3, no. 17; Menoch. de Præs. lib. 1, quæs. 29, no. 7; Peake, Ev. 119; Best, Pres. $ 45.

4 Mr. Justice Parker in No. Am. Rev. vol. Ixxij. p. 178. The learned writer of course referred only to the particular form in which the rule is now stated. The principle, from which the rule is a necessary corollary, is very old. Lord Hale's maxim is, “Tutius semper est errare in acquietando, quam in puniendo ; ex parte misericordiæ, quam ex parte justitiæ." In Fortescue, the maxim laid down by the Chancellor is much more forcible: “Mallem revera viginti facinorosos mortem pietate 63 Yerg. 283.

doubt is a doubt which a reasonable man would entertain under the circumstances. And it is said that the presumption under consideration might, when drawn in a particular case, oblige a verdict of guilty, although, as matter of fact, the triers might not be satisfied beyond a reasonable doubt of the presence of the necessary criminal intent.1 . But we have already adverted to the fact that this consideration has reference to the amount of evidence necessary to be adduced on the part of the accused to destroy the effect of the presumption. This, as we have noticed, has been stated in several different ways, while in most cases where the general presumption has been laid down no reference was made to the amount of evidence necessary to rebut it. Mr. Chief Justice Shaw said that there must be a preponderance of evidence in rebuttal of the presumption, otherwise the presumption would stand; and this rule has since been adopted in several cases, among others in those of The People v. Schryver, and in the judge's charge in Stokes v. The People. In other cases it was said that the prisoner must satisfy the jury of the absence of malice beyond a reasonable doubt.4 On the contrary, in the important case of coffee v. The State, although the presumption was admitted, it was held, that if nevertheless the defendant had raised a doubt on the whole evidence, he was entitled to an acquittal. The second conclusion, also, to which Mr. Justice Wilde came, in his dissenting opinion in Com. v. York, was that even if such a presumption existed, if the evidence lead to a reasonable doubt whether the presumption were well founded, that doubt would avail in favor of the prisoner. The same suggestion was made in the very able argument of the prisoner's counsel in the same case, to the effect that even though evadere, quam justum unum injustecondemnari.” Fortes. de Laud. Leg. Aug. c. 27. The maxim is found in the civil law in both forms, and stated even more favorably for the accused than in its present form in our law. “Satius enim est et melius nocentem et facinorosum relinquere, quam innocentem punire et damnare.” Farin. Tract. de Test., in lect Nicol. de Lescut, c. 6. “Ad condemnandum vero probationes luce meridianâ clariores et documenta omni exceptione majora esse debent . . . sed in minimo dubio præstat nocentem dimittere, quam innocentem condemnare." Leeuwen, par. ii. lib. 2, c. 7, § 15; Voet, ad Pandect. lib. xxii. tit. 3, no. 18.

1 Per Wilde, J., in Com. v. York, 9 Metc. 93; Maher v. The People, 10 Mich. 212; 1 Bennett & Heard, L. Cr. Ca. 355, n.; 2 id. 504, n. 2 42 N. Y. 1.

3 61 or 52 N. Y.--. Patterson v. The People, 46 Barb. 625, overruled as to that point by The People V. Schryver, supra.

the presumption were allowed to prevail, and the burden were thereby thrown upon the prisoner, it was only a prisoner's burden, the only one ever put upon him by the law, that of satisfying the jury that there is reasonable doubt of his guilt.1

Undoubtedly this is the true rule, sanctioned alike by the rules of evidence and the acknowledged tenderness and humanity of the criminal law towards persons on trial for crime. The presumption in question, when once established, stands for evidence of the fact until it is overthrown. It is therefore subject to the general rule governing evidence against the prisoner, that is, to the rule as to reasonable doubts. If evidence sufficient to raise a reasonable doubt as to the existence of malice in a given case be produced by the prisoner, or appear in any other way, the prisoner may profit by that doubt. If no evidence appear tending to change the primâ facie unlawful character of the act the presumption stands.2

Again, it is said that the presumption in question being a prosumptio juris, is an encroachment upon the province of the jury. is so considered by Bentham, and it is given by him as one of the most flagrant instances of “judge-made inferences” among what he called the “ chaos of jurisprudential law.” 3 The domain of the jury has undoubtedly been much extended since this rule was established. The difficult question of deciding what are matters of law and what of fact, seems in process of solution in some quarters, by the expedient of declaring every thing to be matter

1 See the exact parallel to this question in the civil law, and the practical application of the doctrine of reasonable doubt in the solution by Bartolus, supra.

? The case of Com. v. Hawkins, in which Com. v. York was explained and qualified, virtually amounts to this.

$ “To any man, has it been your misfortune to have been the cause of death? To save to the jury the trouble of inquiring under what circumstances, and the danger of being deceived by evidence, the judge, if such be his pleasure, will find you guilty of murder, and so order matters that you shall be hanged for it. ... Would the jury, had the inference been left to them, have found in your bosom any such thing as malice? This is of the number of those things which they are not to be trusted with. ... Of malice, according to the indictment, the supposed existence was necessary. But in proof of this essential matter of fact, according to the doctrine of some reverend and learned person who wanted to destroy a man, of whom, in the eyes of the jury, it would, it was feared, not appear fit that he should be destroyed, it was not necessary that any probability should be presented by evidence. Presuming is shorter than proving, - power more pleasant that impotence; and so, because it had not been proved to the jury, it was presumed by the judge." Benth. Rat. Jud. Ev. (Introd. View), c. 12; id. c. 22, n.

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